G.R. No. 1214. March 27, 1905

The defendant is charged with the crime of misappropriation of
public funds. This misappropriation, as stated in the complaint, is as
follows: That the defendant, “as treasurer of the municipality of
Cabanatuan, Province of Nueva Ecija, was in charge of the sum of
1,133.35 4/8 pesos, Mexican currency, belonging to said municipality;
that he substracted this amount and did not deliver same to the new
treasurer, Emilio Vergara, when the latter took over said office.” The
judge below, considering the facts as charged in the complaint proven,
and taking into consideration that the act fell within the second
paragraph of article 392, together with paragraph 2 of article 390 of
the Penal Code, sentenced the defendant to three years and ten months
of presidio correcional with the accessories provided for in
article 58 of the same code, and to reimburse the municipal treasury of
Cabanatuan in the sum of 735.53 pesos, Mexican, or to suffer the
subsidiary penalty in case of insolvency at the rate of one day for
each 12 1/2 pesetas for the amount unpaid, to eleven years and one day
of disqualification from the office of municipal treasurer, and to pay
the costs of the suit. The defendant appealed from this judgment.

It is well proven in the case, not only by the testimony for the
prosecution but also by the defendant’s own statement, that the
defalcation mentioned in the complaint took place. The defense does not
question this point; on the contrary it admits it in its argument. The
defendant, however, alleges a defense which, were it true, would
deserve serious consideration. The defendant states that the sum
defaulted was kept by him in a wardrobe in his house, because there was
no safe place at the municipal building and that the amount was
substracted, or stolen, during a fire which occurred in his house on
the morning of April 20, 1902. The substraction of the money took
place, according to the statements of the defendant, by means of the
breaking of the lock on the wardrobe where the money was kept. When the
defendant testified in his own behalf, he stated the occurrence in the
following terms:

“At about 2 or 3 o’clock on the morning (of April 20, 1902), I was
awakened by the cries of my servant, Leoncia de Leon, calling ‘Fire!
Fire!’ I came downstairs to see the fire and I saw that in fact the
projecting roof of my own house was burning. I likewise saw that there
were many persons already there. My wife came downstairs also, leaving
in the house my two children. When I heard my children crying, I went
back and got them and turned them over to my wife; I then went back to
the house again, after asking my wife for the key to the wardrobe. She
told me that it was underneath the pillow. As I did not find it there I
went to the room where the wardrobe was and there I found the municipal
secretary, Jose Cuisia, who was just leaving through the door. I saw
the clothes strewn over the floor and the wardrobe open, as well as the
window of the room. I gathered all the clothes together and threw them
out the window, telling my wife to search for the money amongst the
clothes, because I found the wardrobe open. I then came down to help my
wife look for the money among the clothes and as we did not find it
there, I went back again to see if the money was in the wardrobe. The
money was not there.”

The defendant says in addition that the money which disappeared
consisted in part of American bank notes which were contained in an
envelope and American and Mexican coins wrapped in a handkerchief; all
being kept underneath the clothes. The defendant was asked how long he
stood watching the fire in the lower part of the house and he replied
as follows: “I was not there long, because when I heard my children cry
I went up and got them and gave them to my wife,” calculating that it
had taken him five minutes to do this. He was again asked how long it
was after he came out from his house bringing the Children to his wife
until he went back again, and he replied that it did not take him very
long “because he ran.” He added that when he went for his children he
did not see anybody in the place where they were, but when he went back
again he saw that there were some people at the fire and that the
secretary, (Jose Cuisia), was coming out from the room. The defendant
finally states that when he noticed the disappearance of the money he
asked the secretary to come with him and both went together to the
president’s house to give him an account of the occurrence.

In order to prove that the defendant really had in his possession
the amount which is missing on the day on which the fire occurred, or
some days previous thereto, the witnesses for the defense, Bias
Lorenzana and Pedro Melencio, the latter a brother of the defendant,
were introduced. The first of these witnesses declares that he, being
the deputy provincial treasurer, went to the defendant’s house on the
nigh of April 17 in order to give him part of the taxes collected from
the municipality of Cabanatuan, and the defendant showed him a roll of
American bank notes, but he could not estimate the amount because he
did not examine the same. He did not examine into the condition of
affairs at the treasury of said municipality because he did not have
time to do it and he thought that everything was all right. Pedro
Melencio says that on the evening of the 17th, 18th, or 19th of April
he was at the house of the defendant, whom he found counting American
bank notes and American and Mexican coins, and upon asking the
defendant what the money was the latter answered him it was money of
the municipality and he was counting it because he was going to make
delivery of the same to his successor. This witness states,
furthermore, that early on the morning of the 20th of April he went to
the fire at the house of the accused and helped to extinguish the same;
after this he observed that the inhabitants of the house were very much
excited looking for the money which had disappeared from the wardrobe
and that he was told then by the defendant and his, defendant’s, wife
that part of the money belonged to the municipality and part of it
belonged to the wife of defendant and that it all amounted to 1,133
pesos and some cents.

According to the municipal president, Leocadio Jarenas, on the
morning of the 20th of April the defendant told him that his house had
been set on fire and that, due to the efforts used to put the fire out,
the same was confined to the projecting roof of his house; that during
the fire his wardrobe where he kept the funds of the municipality had
been broken open and about 600 pesos in bank notes and 150 pesos in
coin belonging to the municipality had been substracted, together with
100 pesos belonging to his wife, but that when the witness was writing
out a notice to the proper authorities of the occurrence the defendant
told him a very different story, viz, that the amount which had been
stolen was 800 pesos in bank notes and 200 pesos in coin belonging to
the municipality and 200 pesos belonging to his wife. The defendant,
according to this witness, stated to him that lie and his family did
not leave the house during the fire.

The municipal secretary, Jose Cuisia, who accompanied the defendant
at his request when the latter went to give an account of the
occurrence to the president, corroborates in part the testimony of the
latter as regards the fact that according to what the defendant first
said to the president, the amount stolen during the fire was only 600
pesos, bank notes, and 100 pesos, coin, and another 100 pesos belonging
to his wife. This witness was living at the house of the defendant when
the fire took place and he asserts that the defendant slept in the
lower floor of the house on that night and that during the fire some
neighbors came and among them he saw some near the roof engaged in
putting out the fire, but he did not see anybody inside the house. This
witness, as well as the former witness, to wit, the municipal
president, Leocadio Jarenas, affirms to have examined the wardrobe
immediately after the fire, the lock of which, according to the
defendant, had been broken, and that they did not find any signs of
violence having been used on the exterior of same. Corroborating this
testimony is that of the provincial governor, Epifanio Santos, who says
that, having examined the wardrobe in consequence of the notice he
received of the occurrence, he saw that there was no sign of it having
been broken from the outside and that, althought the lock was out of
place or unfastened, it must have been from some cause from within and
not from without—that is to say, that the door seemed to have been
opened by means of the key and after it was opened, the screws which
held the lock were removed with a screw-driver.

All the witnesses who testified as to the fact of the fire agree
with one another that the fire was discovered almost as soon as it
started, and for this reason the municipal secretary, Jose Cuisia, says
that “the fire was in its infancy.” The governor, Epifanio de los
Santos, says that the fire was confined to the inner court and not even
the inner court was burned. The defendant himself, when reporting the
affair to the municipal president, told him that the fire was found in
the roof of the house, or, better, in the part which projected over the
staircase, as appears in several parts of the record.

These witnesses and the defendant declare that some days previous to
the fire, Emilio Vergara had been appointed to succeed the defendant in
the office of municipal treasurer of Cabanatuan.and that the new
treasurer had not taken possession of his office up to that time, for
the reason that he had not examined the books of the treasurer. The
defendant knew that this appointment had been made and made delivery of
his office to his successor on the day following the fire, viz, the
21st of April, but he did not then turn over to him the sum of 1,133.33
4/8 pesos, Mexican, which was missing.

From these facts we make the following conclusions:

(1)That it has not been sufficiently proven that the
defendant really had in his possesison the amount defaulted when the
fire took place in his’house, on the morning of the 20th of April,
1902. His witnesses, Blas Lorenzana and Pedro Melencio, even taking
their statements as true in every respect, refer to a time two or three
days previous to the 20th of April, and they did not know the amount of
money which they respectively state they saw in the possession of the
defendant.

(2) Be that as it may, and no matter whether the
fire was accidental or intentional on the part of the defendant, or
some other person—for it is not necessary to determine that fact for
the purpose of this opinion—the truth remains that not only was it not
proven that the amount missing had been robbed from the defendant
during the fire or at the time said fire took place but it can not be
stated as a fact, fully proven by all the particulars given at the;
trial, that such robbery ever took place; it was only simulated for the
purpose of covering up the existence of the defalcation. The fire was
so short and so insignificant that it could not really be called a
fire, but rather the beginning of a fire. According to all the
witnesses, and the defendant himself, it was confined to the same place
where it started. Of so little importance was this fire that neither
the defendant nor his wife left the house. This appears from what the
defendant himself told the municipal president immediately after the
fire, notwithstanding that he may now want to state differently, when
he testified as a witness in the case.

Under such circumstances it is unlikely that a robbery could have
taken place without the defendant or his family, who all stayed in the
house, having noticed same. But even admitting that they came out of
the house, as the defendant states in his testimony, it would still be
just as improbable, if we take into consideration the short time which
passed between the moment the defendant came out of the house with his
two children and turned them over to his wife who was in the yard, and
at which moment there was no stranger inside the house, until the time
when he went back into the house, when he says he saw some people in
it, and pretended to have discovered the supposed robbery. The
shortness of the time which transpired between the one act and the
other can be estimated when we consider that the defendant came down
from the house and went back upstairs running, as appears from his own
statements. He states that when he went back to the house he found
there the municipal secretary, Jose Cuisia, who was his guest, coming
from the room where the wardrobe was containing the money. Therefore we
can only state that the room was never abandoned, because while the
defendant was out of it, Jose Cuisia was inside; or, at most, the room
was vacant for so short a time that it can not be conceived how a
robber could have broken the lock of the wardrobe, rummaged among the
clothes which were inside, and throwing them on the floor, while
looking for the bank notes concealed among said clothes, and disappear
then with the bank notes and with the heavy load of four hundred pesos
in coin, without being seen by the defendant or any one of his
companions in the house. But the best proof and the one which shows
more conclusively that the robbery was only simulated is the pretension
that the wardrobe was broken, in which the money was supposed to have
been kept. This fact is fully proven by the corroborative testimony of
three witnesses who deserve full credit, and according to these
witnesses there was no breaking but merely a simulation of a breaking
and a very poor one at that. The wardrobe” did not show any signs of
violence from without; the violence was exercised from within by
removing the screws of the lock with a screw-driver, after having
opened the wardrobe with its own key. This operation required time and
coolness. It could not have been done by a robber in the short time
during which the room was left alone. It does not seem reasonable even
that a robber would waste time in un-screwing a lock after having
opened the wardrobe.

All these things lead us to believe that it was the defendant
himself who did it, in order to simulate robbery by the breaking of
said piece of furniture. It is only thus we can explain the
contradiction of the defendant when he gave the account of the
occurrence to the municipal president, telling him first that the sum
robbed belonging to the municipal treasury was only 600 pesos in bank
notes and 150 pesos in silver, and later, at the time of writing the
notice to the proper authorities, that the money amounted to 800 pesos
in bank notes and 200 pesos in silver. Of course, even granting the
last statement, there would still be a balance against the defendant of
over 130 pesos, the difference between the amount of the deficit
against him and the sum of which he alleges to have been robbed. This
also explains the unjustified excitement and the serious contradictions
which the defendant made when he was examined by the governor, as
appears from the testimony of the provincial governor, Epifanio de los
Santos. And, finally, this explains the fact that the defendant offered
to reimburse the balance of the money, provided he was not subjected to
a criminal trial, as he stated in his petition addressed to the
Attorney-General of these Islands, as appears from the testimony of the
said Governor de los Santos, who affirms to have seen and read said
petition.

The above facts necessarily lead us to the conclusion that the
defendant is guilty. We do not take into consideration the rumors which
some witnesses for the prosecution heard of sums of money, more or less
considerable, which this defendant lost at the cockfights on some days
previous to the date of the fire; these are mere rumors and can not be
taken into consideration as sufficient proof of this fact.

According to the doctrine established by the supreme court of Spain,
in the judgment of November 21, 1888, in order to determine the guilt
of an accused as principal in the crime of misappropriation provided
for in article 407 of the Penal Code (392 of the Code for the
Philippines) it is sufficient to prove that the defendant received in
his possession certain sums of money, that he did not deliver them and
did not have them, and could give no reasonable excuse for the
disappearance of the same.

Although the defendant alleges as a defense that he was robbed of
the amount which he is short he has not only not proven the truth of
such allegation but all the particulars testified to during the trial
show in an undeniable manner that this robbery was only simulated in
order to explain the nonexistence of any defalcation and to avoid
criminal liability.

Of the amount misappropriated one of the bondsmen for the defendant
has reimbursed the sum of 377.78 pesos and the balance has not been
reimbursed as yet. For this reason it is not necessary to determine
whether the misappropriation caused any injury or detriment to the
public service, because, with or without such effects, the liability
provided for in paragraph 2 of article 392, together with article 390
of the Penal Code, is that applicable to the present case, because the
amount misappropriated has not been reimbursed in greater part.

Therefore we affirm the judgment below, with the costs in this instance against the defendant. So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ., concur.